Another top-notch Supreme Court nomination

The perfect choice for the season of resistance.

Rabbi Prof. Dov Fischer, 11/07/18 20:52 | updated: 20:45

Rabbi Prof. Dov Fisch

צילום: PR

Rabbi Prof. Dov Fischer

The writer is adjunct professor of law at two prominent Southern California law schools, Senior Rabbinic Fellow at the Coalition for Jewish Values, congregational rabbi of Young Israel of Orange County, California, and has held prominent leadership roles in several national rabbinic and other Jewish organizations. He was Chief Articles Editor of UCLA Law Review, clerked for the Hon. Danny J. Boggs in the United States Court of Appeals for the Sixth Circuit, and served for most of the past decade on the Executive Committee of the Rabbinical Council of America. His writings have appeared in The Weekly Standard, National Review, Wall Street Journal, Los Angeles Times, Jerusalem Post, American Thinker, Frontpage Magazine, and Israel National News. Other writings are collected at www.rabbidov.com .

I would like for President Trump to name Judge Antonin Scalia to the United States Supreme Court. Alas, we get only one Justice Scalia in the course of a nation’s history. So we accept reality, and we move on. (Just not dot-org.)

It is by now a meme: Democrats always get the exact liberal-for-life Supreme Court justice they want their Presidents to appoint. And Republicans get snookered into aiming for fifty percent, toggling like a wall-light switch between and among (i) great conservative justices of historical dimensions like Justices Rehnquist, Scalia, Thomas, and Alito; (ii) serviceable conservative justices like Chief Justices Burger and Roberts; (iii) not-sure-what-kind-of-conservatives-they-are jurists like Justices O’Connor, Kennedy, and Powell; and (iv) liberals like David Souter and auto-immune-disease conservatives like John Paul Stevens and Harry Blackmun, whose internally confused ideologies promoted intellectual antibodies that somehow fight their internal conservatism leaving them broken down with liberal results. Thus, Republicans usually settle for mediocrity in ideological conservatism or get sucker-punched with a liberal-for-life David Souter. Color us: Cheated.

Go back half a century. Nixon quickly threw in the towel after the Titanic-quality disasters of Clement Haynsworth and G. Harrold Carswell. Underscoring the Carswell debacle, United States Senator Roman Hruska fearlessly and passionately defended Carswell who had been derided as a judicial mediocrity: “Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance?” It took one to know one, it would seem.

In the end, Nixon’s the One who gave us two solid conservatives of significant mettle, Warren Burger and William Rehnquist, and two others, Harry Blackmun and Lewis Powell. Gerald Ford gave us John Paul Stevens. Ronald Reagan gave us Sandra Day O’Connor and Anthony Kennedy along with Justice Scalia, not a bad tally, but “good enough” is never good enough — and “not bad” is bad — when dealing with the United States Supreme Court. Bush I gave us Clarence Thomas and David Souter — again, wasting an opportunity with historical ramifications. Bush II gave us the wonderful Samuel Alito, the idiosyncratic but usually conservative John Roberts — and almost saddled us with Harriet Miers, whatever that was about.

It is only with President Donald Trump that Republican conservatives finally are finding a President who has it figured out and who has surrounded hmself with an all-star team of experts to help him avoid the Nixon-Reagan-Ford-Bush2 stumbles. NeverTrump Republicans apparently cannot discern how good these Trump nominations are. It is Trump Derangement Syndrome (TDS), an ebolic derivative of the earlier Bush Derangement Syndrome that Dr. Krauthammer initially diagnosed years earlier. But for the normative mainstream Republican conservatives who actually elected the Republican President, the Kavanaugh nomination reflects yet another Trump Promise Fulfilled.

July 2018 is not the season for a Scalia appointment. By contrast, it is preceiselty the season for a Brett Kavanaugh appoinment. Not only do Judge Kavanaugh’s writings reflect a solidly conservative approach to jurisprudence, though less overtly partisan and combative than was Justice Scalia’s style, but he is the right person for the right moment. Republicans nurse a razor-thin 51-49 majority in the United States Senate. The GOP threw away its seat in Alabama. It seems that Senator McCain will not give up his seat so that the Republican governor of Arizona may replace him, and yet Sen. McCain also may not be on hand to vote. That makes it 50-49.

Rand Paul is idiosyncratic. Lisa Murkowski of conservative Republican Alaska needs to be satisfied that the nominee is not driven secretly to overturn Roe v. Wade. Susan Collins has that same concern, and she also has an electorate who live in Maine. Yet conservatives insist on a justice who will not countenance abortion on demand, will protect Second Amendment rights, will not let the federal government shove regulations down the throats of industry without considering the full gamut of financial and social costs, and will protect religious liberties and freedoms. Meanwhile, Democrats swore to oppose the nominee before the embryo even was fertilized.

So go and get this one through the Senate.

This constellation of factors makes Judge Kavanugh seem the perfect choice for the moment. Yes, hesitation must be expected when anyone Republican-ish has spent too much time too engaged with the Bushes. There always is the fear of a latent NeverTrump/David Souter-type viral infection having taken hold within-- the “Invasion of the Body Snatchers”-type derangement syndrome that has infected everyone from George Will to Jennifer Rubin (if she ever really was a conservative) to that nut Ana Navarro at CNN (same as Rubin, only even crazier, the one who now wants to hound Sarah Sanders out of restaurants). But not everyone associated with Bush was RINO. Dick Cheney wasn’t RINO. Justice Alito was not RINO. Attorneys-General John Ashcroft and Michael Mukasey were not RINO. United Nations Ambasador John Bolton was not RINO. Thus, for honest conservatives, too, Bush was the address in D.C. if a conservative wanted to try having an impact. Therefore, association with Bush should not be disqualifying per sé.

Judge Kavanaugh’s judicial opinions are good to read; they are solid and smart. And there are 300 of them. Unlike David Souter, it is too late in the day for Judge Kavanaugh to hide his views. And his opinions reflect that he supports religious rights and liberties, even to the degree of opposing Obamacare impositions on religious groups that required them to submit paperwork to have their insurers pay for employees' birth control instead of their paying. On abortion, he rejected the Left’s race to find a new Constitutional right for under-age unlawful immigrants to have an immediate abortion. He seems steadfastly pro-Second Amendment. And he would not kowtow to an Obama-era EPA regulation where the EPA failed to go through an administrative finding that would balance the economic cost of the new regulation.

What makes this pick so perfect is that the numbers do allow the GOP to win this fight, but it is a nail-biter, no slam dunk. We cannot afford to lose Rand Paul or Bob Corker or Jeff Flake, so the nominee has to be such a good human being at his very core that Republican Trump-haters would feel ashamed of themselves for superimposing their anti-Trump animus against such a good soul. It has to be someone with a pristine record, unblemished in jurisprudence and in personal life, so clean that CNN gets stuck with having to re-focus on the missing Malaysian airliner and doing specials on Anthony Bourdain. Also someone who unequivocally has not been disdainful of stare decisis (the principle that established law, even when decided under suspect situations, cannot be overturned perfunctorily to accommodate a new zeitgeist). In fact, he co-authored with Justice Gorsuch and others The Law of Judicial Precedent, a treatise defending the principle of stare decisis. How genius of President Trump and his advisers is that? Thus, to keep Susan Collins and Lisa Murkowski on board, Brett Kavanaugh is probably as far to the right as Trump can go.

Judge Kavanaugh probably will hold their support because he really seems an Altar Boy to this day -- feeding the homeless, tutoring kids in the inner cities, Daddy to two sweet little girls. He coaches kids' basketball. He brings his kids to watch women’s basketball. As the meme goes: He is “straight out of central casting.” Yale undergrad, Yale Law School, professor at Harvard Law School, hired for Harvard’s faculty by Elena Kagan.How genius of President Trump and his advisers is that? He clerked for two federal appellate court judges and then for Supreme Court Justice Kennedy. Was Associate Independent Counsel with Ken Starr’s investigation and authored part of the Starr Report. Did a few years’ private law practice as a partner at Kirkland and Ellis, one of the nation’s top fifty law firms, so he knows what real law practice entails outside the classroom and judge’s chambers. He sits on the Disrict of Columbia Circuit Court of Appeals, often described as the nation’s most important appellate circuit, the step closest to the United States Supreme Court. It was from that exact spot that three current Supreme Court justices — Clarence Thomas, Ruth Bader Ginsburg, and Chief Justice Roberts — each ascended to SCOTUS. Indeed, sitting as a judge on that D.C. Circuit was the resumé line that Democrats touted when Obama named Judge Merrick Garland. Not only have many of Judge Kavanaugh’s majority opinions been upheld on appeals by the Supreme Court, but the Court even has adopted some of his dissents on appeal, deeming them the better law than the majority opinions he countered. His 100 most-cited legal opinions have been cited by 210 other judges in their opinions. Thirty-nine of his own 48 judicial appellate clerks have gone on to clerk for United States Supreme Court justices; that means that justices across the ideological spectrum have deemed Judge Kavanaugh’s clerks especially well trained and suited for the highest of judicial work.

For those of us who want even more, the hope is that, if the GOP expands its hold in the United States Senate after November, then President Trump's next Supreme Court Justice can be even more overtly Scalia-ish, and then let those games begin. But for this one, with this tight a margin, Judge Brett Kavanaugh seems really a perfect choice.

It will be fun watching at least six United States Senators engage in linguistic gymnastics as the vote approaches: Joe Donnelly (Indiana), Jon Tester (Montana), Claire McCaskill (Missouri), Joe Manchin (West Virginia), Heidi Heitkamp (North Dakota), and Bill Nelson (Florida). These are six Democrats up for reelection in tough races in states that went for Trump in 2016 — especially the first five, while Nelson has a particularly tough opponent in popular Florida Governor Rick Scott. All these six share a common personality trait that has helped them into the Senate: the ability to lie brazenly -- outright brazen red-faced lying — to the voters of their Republican states during the two months before elections, promising faithfully to reflect their constituents’ conservative orientations and preferences . . . and then bullet-voting with the Democrats for the next 5 years and ten months.

This time, these six really are stuck. If they show their true colors — Resistance Democrat — and vote against Kavanaugh only six weeks before the November election, yet with ample time for their Republican opponents to run six weeks of ads highlighting their perfidy, that may well seal their doom and impel eternally gullible Republican voters to see through the lies and throw them out. On the other hand, if they vote for Kavanaugh, they will inflame their Democrat bases that supply the necessary core votes for reelection. Furious Democrats will stay home or vote a "Green" third party candidate — and might even hound them out of restaurants — and that also can help swing the seats to the GOP.

Justice Kennedy often disappointed, often very deeply. He was conservative in the sense that he always called the cases as he honestly saw them. His decision to step down at this moment, in this way, with this timing, tells more about him and his world view than many people realize. Only a person concerned deeply for the Constitutional values that conservatives cherish would have done it this way. For all we know, President Trump's gratitude to Justice Kennedy for stepping aside as he has done, for the timing, for showing the confidence in President Trump to be the one to appoint his successor, may even have played an oh-so-subtle added influence in President Trump opting for a SCOTUS nominee whose prior credentials include having clerked for Justice Kennedy. Not to mention having co-authored that book defending stare decisis and having been hired by Elena Kagan to be a professor at Harvard Law School. Judge Kavanaugh seems well grounded to be a good one. And, much as the NeverTrumpers are going to find this realization hard to swallow, Judge Kavanaugh is not the only genius in this narrative.